In a keenly anticipated decision, Braidwood Management v. Becerra, the U.S. Court of Appeals for the Fifth Circuit ruled June 21 that the law requiring commercial health plans to cover without cost sharing certain preventive services recommended by the U.S. Preventive Services Task Force (USPSTF) is unconstitutional, in violation of the Appointments Clause of the Constitution. But instead of prohibiting the federal government from enforcing the preventive services law nationwide—as the district court had done—the Fifth Circuit affirmed the district court only to the extent it enjoined the government from enforcing the USPSTF requirements against the particular plaintiffs in this case. However, as a practical matter, this likely means the federal USPSTF coverage requirement will not be enforceable against any health plan in the Fifth Circuit (Texas, Louisiana, Mississippi), barring further judicial or legislative action. Further, the Fifth Circuit remanded the case to the district court to consider anew whether additional requirements for health plans to cover vaccines recommended by the Advisory Committee on Immunization Practices (ACIP) and preventive services for women and children recommended by the Health Resources and Services Administration (HRSA) were enforceable. The decision is unlikely to have an immediate effect on the availability of no-cost-sharing preventive services, though plans in Texas, Louisiana, and Mississippi could begin the process of limiting coverage. The first appellate decision to conclude that this part of the preventive services law is unconstitutional represents a significant threat to the important public health benefits of no-cost preventive services.
The Affordable Care Act (ACA) requires health insurance issuers and employment-based group health plans to cover without cost sharing the preventive services recommended by the USPSTF with an “A” or “B” rating. The ACA also mandates coverage of immunizations recommended by ACIP and preventive services for women and children recommended by HRSA. A group of Texas employers and individuals challenged the law by arguing that the regulatory bodies’ members are principal “officers” of the United States, who, under the Constitution, must be nominated by the President and approved by the Senate, and none are. Therefore, the plaintiffs argued, the provision is unconstitutional.
In September 2022, the U.S. District Court for the Northern District of Texas ruled that members of the USPSTF (but not ACIP or HRSA) were indeed principal officers because of the powers they have to regulate insurance coverage and the protection they have from oversight by any other federal officers. The district court also concluded that, even if the USPSTF members were “inferior” officers, their appointment would still be unconstitutional, because they are appointed by the director of HRSA rather than the President or a department head, like the Secretary of HHS. The district court dismissed challenges to the appointments of ACIP and HRSA members because their recommendations can be—and in fact have been—legally ratified by the Secretary of HHS, who is a constitutionally appointed principal officer. The government appealed, and in its appeal conceded that USPSTF members were inferior officers, but that HHS Secretary Becerra subsequently ratified its recommendations and made the USPSTF members subject to appointment by the Secretary. The plaintiffs cross-appealed to argue that ACIP and HRSA members were also not constitutionally appointed.
The Fifth Circuit rejected the government’s arguments on the Appointments Clause, agreeing with the district court that the USPSTF’s members are principal officers and that the Secretary’s attempt at ratification did not cure the constitutional defect. However, the appeals court departed significantly from the district court in its remedy. While the district court enjoined nationwide implementation or enforcement of the requirement for issuers and plans to cover the USPSTF’s A and B recommendations published after March 23, 2010, the appeals court found no basis for such universal relief. Though, after the Fifth Circuit decision, the injunction prohibiting the government from enforcing the USPSTF coverage requirement now applies to only particular plaintiffs in this case, as a practical matter there is now binding precedent in Texas, Louisiana, and Mississippi that the statute is unconstitutional, so it is unlikely to be enforced against any plans there. In other parts of the country, the preventive services requirement remains enforceable, though employers or insurers that object to the law could sue and seek to extend Braidwood’s holding to additional states.
The court also remanded the case back to the district court to decide whether Secretary Becerra’s “ratification” of the recommendations of the ACIP and HRSA, which did not go through notice-and-comment rulemaking and has other alleged defects, violated the Administrative Procedure Act. If the courts conclude Secretary Becerra did not properly ratify the ACIP and HRSA recommendations, the courts could be forced to decide whether the ACIP and HRSA recommendations are unconstitutional without ratification. Neither the district court nor the Fifth Circuit have yet decided that question, but it appears ACIP and HRSA may lack the constitutional defects the Fifth Circuit concluded existed for USPSTF since the Secretary has a greater degree of control over those bodies. Braidwood does not impact Medicare coverage of preventive services. Medicare covers USPSTF recommended services that have a favorable national coverage determination made by the Secretary. Braidwood also does not affect the ability of the USPSTF to continue its work—it impacts only the effect of those recommendations as insurance coverage mandates.
The government might now petition the Supreme Court to consider the Fifth Circuit’s decision on the constitutionality of USPSTF, though that could risk expanding the impact of this decision nationwide. The patchwork effect of this decision could renew focus on legislative solutions.